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Yale Law School Faculty Scholarship
1-1-1991
Tribute to Justice Thurgood Marshall
Owen M. Fiss
Yale Law School
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Fiss, Owen M., "Tribute to Justice Thurgood Marshall" (1991). Faculty Scholarship Series. Paper 1197.
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I99x]
THURGOOD MARSHALL
on such issues, however, clearly sharpened the debate and often limited the sweep of a decision adverse to the position of the minority
litigant. 38 A significant amount of Marshall's contribution has undoubtedly been made in the conference room, 39 although we may
never know how much. Once, Marshall sharply answered one reporter who had asked him if he would discuss his deliberations in
conference: "No, of course not. .
.
. Oh, I can tell you this, it was
in the Conference Room, and anything said and done in the Confer'40
ence Room remains there.
Scholars and commentators should begin to judge Justice Marshall
the Younger, who sat on the Supreme Court for twenty-four years,
by the same criteria used to evaluate the judicial ability and contribution of Marshall the Older. Marshall's friends, including those of
us who were fortunate to have been "touched by his fire"4 1 in our
youth, have every confidence that Marshall the Younger will rank
highly when measured against such universal standards.
Please permit me one personal word directed to Justice Thurgood
Marshall himself: You have performed your task with great style and
in a way that has made the law a grander calling. Thanks so much
for greatly improving the quality of our laws, the vision of our country, and the hope that the youth may yet enjoy the blessings of liberty
without the burdens of unfair restrictions imposed by the color of their
skin, their gender, or their poverty. As with the discovery of Ecclesiasticus, you have given us an additional inheritance.
Owen
Fiss*
Thurgood Marshall is a fabulous cook. In 1965 he invited me and
my wife to his apartment on Amsterdam Avenue in New York and
made a crab gumbo, okra and all, that I remember to this day. I
was told that I had his grandmother to thank. With a loving irreverence that was fully deserved, she greeted his decision in the late
1920S to study law by insisting that he also learn to cook, so that he
always could be sure of a job. Given the racism rampant in Baltimore, or for that matter, in America at that time, no one could
possibly have imagined that.Thurgood Marshall would someday have
38 See, e.g., Croson, 488 U.S. at 528 (Marshall, J., dissenting); City of Memphis v. Greene,
451 U.S. 100, 135 (i98i) (Marshall, J., dissenting).
39 See Brennan, supra note 8, at 396.
40 News Conference, Supreme Court Associate Justice Thurgood Marshall, Fed. News Serv.
(June 28, i998), available in LEXIS, Nexis Library, Fednew File.
41 Cf. TOUCHED WITH FIRE: CIVIL WAR LETTERS AND DIARY OF OLIVER WENDELL
HOLMES, JR., 1861-1864 (Mark D.W. Howe ed., 1946).
* Alexander M. Bickel Professor of Public Law, Yale University.
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the greatest legal career of the twentieth century: chief counsel for the
petitioners in Brown v. Board of Education,' judge on the Court of
Appeals, Solicitor General of the United States, and finally, Supreme
Court Justice.
On many occasions the Justice assured his friends that he would
never retire from the Supreme Court and that he intended to continue
for the full term of his office, which he reminded us was for life. "I
2
expect to die at iio, shot by a jealous husband," he quickly added.
Those familiar with his bravado, and who saw the toll of age, were
not surprised by the decision to retire, for he was then eighty-three
and had served on the Court for twenty-four years. But most others
were shocked and also saddened by his retirement, for it seemed to
spell the end, the very end, of an era.
In truth, that era had ended some twenty years ago, when Earl
Warren, Hugo Black, William Douglas, and Abe Fortas stepped down
and were replaced by Presidents Nixon and Ford with Justices who
had a markedly different outlook. The Reagan appointees only made
matters worse. Justice Marshall's retirement did not cause a shift in
the balance of power on the Court, but it came a year after the
retirement of his beloved friend and colleague, William Brennan, the
only other Justice remaining from the coalition that moved and shaped
the Court during the Warren era. Moreover, because Marshall was
the lawyer responsible for the initial victory in Brown, his decision to
withdraw from public life confirmed in a bold and dramatic way the
troubled state of the Warren Court legacy.
In the chambers of the Supreme Court today, Brown and all that
Marshall fought for stands in jeopardy. Although that case has not
been overruled and probably never will be, it has been drained of its
generative power. Rather than serving as an axiom and an inspiration, as it did in the I96Os, Brown is now tolerated as an exception
to be cabined and limited. In almost all of the major school desegregation cases of the last two decades, from Milliken v. Bradley3 in
1974 to Board of Education v. Dowell4 in I991, Justice Marshall was
on the losing side and rightly complained that the majority had betrayed Brown. This complaint has not been confined to school cases,
but has extended to all manner of cases involving the Bill of Rights
and the Civil War Amendments. The ruling coalition seems determined to deny the idealistic possibilities of the law so exalted by
Brown.
Outside the Supreme Court, the situation is somewhat different,
for many in the academy and the profession still take their bearings
1347 U.S. 483 (i954).
2 Juan Williams, Marshall's Law, WASH. POST, Jan. 7, i9go (magazine), at 12, 19.
3 418 U.S. 717 (1974).
4 1i1 S. Ct. 630 (1991).
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THURGOOD MARSHALL
from Brown and the other efforts of the Warren Court to actualize
the nation's highest ideals. The result is an open and marked hostility
between the Court and its primary constituency. Indeed, just the
other day, Guido Calabresi, the Dean of the Yale Law School, invited
to write this year's Supreme Court Foreword, began an article in the
New York Times on this remarkable note: "I despise the current Supreme Court and find its aggressive, willful, statist behavior disgusting
. ...,,Noteveryone would agree with these characterizations, but
they indicate the degree of estrangement from the Court that now
exists in the law schools of the nation and perhaps beyond.
This rift between the Court and the profession started in the I970s,
has grown to striking proportions today - especially given the doubts
that have arisen concerning Marshall's successor - and is likely to
deepen in the future. Those inclined to oppose the Court face enormous challenges, not the least of which is the temptation to acquiesce
and to savor the rewards of professional success. But at moments of
weakness, we might well turn to Marshall for instruction. He has
produced a body of dissents that reveal the errors of the present
majority, but even more important than his words is the life he has
lived, for it provides a standard by which we can measure our own.
On the day after his retirement, a reporter asked him, "Justice Marshall, how do you want to be remembered?" and with a spontaneity
that belongs only to the deepest truths, he answered: "That he did
6
what he could with what he had."
From the beginning, Thurgood Marshall fought for what was
right, even when the chances of success were minute and the hardships
great. He began the practice of law during the Great Depression,
when he opened a one-man law office in Baltimore. Soon he started
handling civil rights cases, although there was virtually no law in his
favor and, of course, no prospect of a fee. He won a number of
important victories, including one against the University of Maryland,
and in 1936 he moved on to the national headquarters of the National
Association for the Advancement of Colored People (NAACP) in New
York. Two years later he became its chief counsel. At the time the
NAACP was, to put it charitably, a fledgling organization. It had a
shoestring budget and a minuscule staff - one or two lawyers and a
secretary. Marshall once confessed that after a number of years he
received a raise, but spent the entire amount -
such as it was -
on
a single lunch at Luchows. Things improved for the NAACP after
Marshall's victory in Brown and the subsequent confrontation with
Governor Faubus in Little Rock, Arkansas. But for Marshall, the
struggle continued.
5 Guido Calabresi, What Clarence Thomas Knows, N.Y. TIMES, July 28, 1991, § 4, at i5.
6 Excerpts from Marshall News Conference, L.A. TIMtEs, June 29, i99i ,at A2 3 .
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I clerked for Marshall in 1964-1965, when he was a judge on the
Court of Appeals for the Second Circuit, and I witnessed first-hand
his extraordinary capacity to stand up for what he believed was right.
At that point, the struggle stemmed from the reluctance of his colleagues to implement fully the reforms in criminal procedure being
developed by the Warren Court. Unlike the battles of his early years,
in these confrontations Marshall could invoke the formal authority of
the Supreme Court. But in the early x96os, the Court was at the
center of controversy and criticism; it needed support and had little
to confer. His years as Solicitor General and his early years on the
Supreme Court, when he sat in the company of his heroes, were
something of a respite, for by 1967 the Warren Court had achieved
considerable power. But soon the tide shifted.
In 1968 Richard Nixon campaigned for the presidency by attacking
the Warren Court, and upon winning, began to make appointments
to alter radically the Court's direction. Justice Marshall soon began
to feel under siege. In 197o he was hospitalized with pneumonia,
and, as he tells the story, was informed by a doctor one day that
President Nixon had been inquiring about his health. Instantly, Marshall instructed the doctor to tell the President, "Not yet." In the end,
he proved true to his word, although this resolve meant that he would
spend the next twenty years - almost his entire career on the Supreme
Court - in battle against the counterrevolution led by Justice, later
Chief Justice, Rehnquist.
On the Justice's retirement, one law professor trying to summarize
Marshall's years of service on the High Court aptly referred to him
as "the Great Dissenter." 7 In his dissents, he continually tried to
remind us how far short we have fallen from our ideals. Justice
Marshall made a career of protesting the roll-back in school desegregation, the dismantling of procedural protections for the accused, the
erection of new barriers to affirmative action, the disregard for free
speech, and the reinstitution of the death penalty. On his last day on
the bench, Justice Marshall dissented from a Rehnquist decision permitting the admission of victim impact evidence in capital cases, and
he concluded his opinion and his career on this worrisome note: "Cast
aside today are those condemned to face society's ultimate penalty.
Tomorrow's victims may be minorities, women or the indigent."8
Sitting in the Supreme Court's exalted offices, one does not need
great courage to speak out, only strong convictions and a will to resist.
Much more than that, however, was needed when Marshall began his
career as a civil rights lawyer. Marshall loved telling stories of those
early years - and he retold those stories so often that they must be
true. During my clerkship year, I heard many tales of his travels in
7 Kathleen M. Sullivan, Marshall, the Great Dissenter, N.Y. TIMEs, June 29, 1991, at A2 3 .
8 Payne v. Tennessee, IiI S. Ct. 2597, 26 25 (iggi) (Marshall, J., dissenting).
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THURGOOD MARSHALL
the South, especially in the late 193os and 1940S when he criss-crossed
the region by car and train, lived out of a suitcase, and confronted
the crude and violent racism of the day. He spoke admiringly of the
ordinary folk - for example, the plaintiffs in his school suits - who
risked their livelihood and sometimes their lives to ensure that justice
was done. Now and then, he mentioned a white official - a judge
or a sheriff - who at great personal sacrifice did what simple decency
required. Usually, the stories ended with a chuckle and a self-effacing
twist, in which he pictured himself eagerly running out of town to
escape a pistol-whipping or trying to pass himself off as a chauffeur
to skirt a threatening crowd.
Even Marshall knew when to move on. Once he recalled this
encounter in a small Mississippi town:
I was out there on the train platform, trying to look small, when this
cold-eyed man with a gun on his hip came up. "Nigguh," he said, "I
thought you oughta know the sun ain't nevah set on a live nigguh in
this town." So I wrapped my constitutional rights in cellophane,
tucked them in my hip pocket - and caught the next train.
Marshall's modesty in reciting these tales was admirable, but it did
not mask the immediacy of the danger he faced. We do not often
think that great lawyering requires courage, but it does, and Thurgood
Marshall has plenty.
I also marveled at the absence of bitterness or anger in his character. The Justice is a warm and jovial person, always ready to tease.
His favorite term of endearment when addressing his law clerks was
"knucklehead." Sometimes I was just "boy." Although I am sure that
there was, and still is, much in America and on the Court that angered
him, Marshall rarely let those feelings surface. He worked steadily
and determinedly to forge the law into an effective instrument of
reform, but he always listened to his adversaries, pondered the argument, and then stood tall and straight. Justice Black once described
Marshall's argument in Brown in just these terms and contrasted it
with that of John W. Davis - often reputed to be one of the greatest
advocates of the century - who lost both his cool and his argument
when he crossed swords with Marshall in Brown.
None of this is to deny that Marshall was frustrated with the
changes in the Court and that he sometimes let an angry sentence slip
out. An early example is his dissent in United States v. Kras,9 in
which the majority upheld the application of a court filing fee to a
poor person and tried to minimize the hardship by insisting that the
fee was not much of a burden. The statute provided for the payment
of the fee by installments ranging from $1.28 to $1.92 a week calculated by the Court to be "less than the price of a movie and little
9 40 9 U.S. 434 (1973).
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more than the cost of a pack or two of cigarettes." 10 Justice Marshall
responded angrily: "It is perfectly proper for judges to disagree about
what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised on unfounded assumptions
about how people live."" Such slips became more common as the
retrenchment of rights became more pronounced. In recent years, he
has described the position of the majority as "astonishing," "arrogant,"
"facile," "myopic," "perfunctory," "impetuous," "dismaying," and "indecent."'1 2 Once, when a majority of the Court invalidated a modest
program of Richmond, Virginia to eradicate the vestiges of past dis3
crimination, he used almost all these adjectives in a single dissent.'
For the most part, however, these displays of anger were the exception. Thurgood Marshall is a passionate man, but strongly disciplined;
as such, he is the epitome of the law.
As might be expected of someone who spent his life fighting against
the odds, the Justice is always determined to find glimmers of hope,
even in the darkest hour. A few years ago, he spoke at a reunion of
law clerks and reflected on the significance of the confrontation in the
Senate over the nomination of Robert Bork. The Justice suggested
that the decision of the Senate, rejecting the nomination of a man
who had devoted his career to attacking - indeed, mocking - the
Warren Court, gave us a reason to be optimistic. "Decency seems to
be coming out of the closet," as he put it. Subsequent developments
belied this prognosis (I never thought of Marshall as much of a
soothsayer), but his resolve to be hopeful remained. "Nothing can
shake my faith in my country," he commented on many occasions; "I
still firmly believe that right will win out." Thurgood Marshall is a
good man, and he often acted as though he were under a moral duty
to see the best in people. On some occasions that proved impossible,
but then he would quickly let the matter pass.
Throughout his life, Thurgood Marshall was moved and supported
by his love of family. His wife, Cissy, is truly a remarkable person,
spirited and determined, but always with the warmth that is the
Marshall trademark. Every time the Justice said - which was quite
often - "Isn't she something," we would all rush to agree. He is
equally devoted to his two sons. He certainly was the only judge on
10Id. at 449.
11Id. at 460 (Marshall, J., dissenting).
12See, e.g., Payne v. Tennessee, rI S. Ct. 2597, 2623 (199i) (Marshall, J., dissenting)
("This truncation of the Court's duty to stand by its own precedents is astonishing."); City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 529, 530, 543, 554 (i989)(Marshall, J., dissenting)
(characterizing the majority's position as myopic, dismaying, perfunctory, and facile); Wainwright v. Adams, 466 U.S. 964, 965-66 (1984) (Marshall, J.,dissenting) ("The Court's jurisprudence is increasingly being marked by an indecent desire to rush to judgement in capital cases.
... [C]aution has been thrown to the winds with an impetuousness and arrogance that is truly
astonishing.").
13 See Richmond, 488 U.S. at 528 (Marshall, J.,dissenting).
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THURGOOD MARSHALL
the Second Circuit who drove his children to school each and every
day - and enjoyed it. He gets a kick out of the fact that one son,
John, is now a Virginia state trooper (or as John put it at a recent
law clerk banquet, a "law enforcement officer"). A few days before
his retirement, the Justice stepped from behind the bench, took off
his robe, walked to the lectern he knew so well, and moved the
admission of Thurgood, Jr., his other son. This small ceremony, and
Cissy's presence in the courtroom on the last day he sat, spoke powerfully of the role of his family in his life.
As crucial as his family has been, he has also been sustained by
his love of the law - not just its maneuvering, of which he never
seemed to tire, but also its redemptive possibilities. For Thurgood
Marshall, the law is our last hope. He retired after toiling in the
profession for sixty years, but he remains a monument to all that is
good in it. As long as there is law, his name will be remembered,
and when his story is told, all the world will listen.
A. Leon Higginbotham, Jr.*
To laud Thurgood Marshall solely for improving the options of
African Americans' would be too simplistic a tribute for a person who
has touched so many lives. Most Americans, not only African Americans, have benefitted from the extraordinary catalytic and ripple
effects of Brown v. Board of Education2 and its thrust for a more
equalitarian 3 society. Other victims of systemic discrimination, particularly white women, 4 have probably benefitted far more than blacks
from the civil rights revolution of the 195os and the i96os and from
the related civil rights legislation. One of America's greatest historians, John Hope Franklin, put Thurgood Marshall's accomplishments
in perspective when he noted that Justice Marshall spoke not only
: Judge, United States Court of Appeals for the Third Circuit. I would like to thank Judge
Louis H. Pollak, Chief Judge Collins Seitz, and Professor Ronald Noble for their very helpful
insights. I also thank the many federal judges who responded so promptly and thoughtfully to
my questionnaire. I would also like to acknowledge the assistance of Audrey McFarlane, Eric
Tilles, Steve Niven, Mark Greene, Yvonne Look, Kathleen Cleaver, and Jonathan Klaaren.
I I use the terms African American, Black, and Negro interchangeably. For a discussion of
the problem of what is the proper term, see A. Leon Higginbotham, Jr. & Greer C. Bosworth,
"Rather Than The Free": Free Blacks in Colonial and Antebellum Virginia, 26 HARV. C.R.C.L. L. REv. '7, 17 n.4 (199i).
2 347 U.S. 483 (1954).
I use the term "equalitarian" in lieu of "egalitarian" because of the insights of Judge William
H. Hastie in his seminal article. See William H. Hastie, Toward an EqualitarianLegal Order,
1930-I95o, 407 ANNALS AM. ACAD. POL. & Soc. SCI. IS (973).
4 See infra pp. 63-64.
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